I generally have refused to even participate in the debate over Indiana's RFRA because most of the discourse is so incredibly ill-informed that it is impossible to have a serious discussion. But I would like to make one observation:

Hold whatever religious views you want: about whether women should drive, or the morality of having children out of wedlock, or whatever. Your church gets to choose (and enforce its rules). You can practice whatever your church may preach. But if you operate a business, you shouldn’t be allowed to discriminate against people based on who they are, or whom they love.

OK, that is clear enough -- if you have a business that serves the public, you must accommodate all the public equally. You can't decide not to do business with some group of people. But this leaves me with a question -- many of the opponents of Indiana's RFRA, from Apple Computer to the NY Times editorial page to the governor of Connecticut (which has its own RFRA, lol) called for businesses to boycott the citizens of Indiana. Why isn't such a boycott, essentially a refusal to do business with anyone from the state of Indiana irrespective of his or her position on the RFRA, illegal/immoral under exactly Marcus's logic? Most folks see boycotts as an important first amendment right, a way to express displeasure with a group using the power of markets, without government coersion. But it seems to be proscribed by Marcus's definition. Am I missing something here?

I suppose supporters of the boycott would argue that it is OK to refuse business based on political opinions but not on race or gender or sexual orientation. But supporting the legality of gay marriage is a political opinion. Now what?

Try as I might, I can only think of two internally consistent positions on this issue: 1. Businesses have the freedom to accommodate whomever they want; or 2. All businesses, perhaps as a part of the state business license requirements, must accommodate all comers no matter what. Number one leads to some ugly, but probably rare, incidents. Number two causes a lot of friction with other first amendment rights such as speech and religion.

Any other position must take the form of "it is legal to refuse accommodation based on some things but illegal to refuse accommodation based on other things." There is no way to derive a dividing line between the two based on first principles, so the line becomes a political football, with no viewpoint neutrality. Basically, accommodation law is whatever the politician of the moment says it is. Unfortunately, this seems to be what most folks are advocating.

Post-modernism is many things and its exact meaning is subject to argument, but I think most would agree that it explicitly rejects things like formalism and realism in favor of socially constructed narratives. In that sense, what I mean by "post-modern science" is not necessarily a rejection of scientific evidence, but a prioritization where support for the favored narrative is more important than the details of scientific evidence. We have seen this for quite a while in climate science, where alarmists, when they talk among themselves, discuss how it is more important for them to support the narrative (catastrophic global warming and, tied with this, an increasing strain of anti-capitalism ala Naomi Klein) than to be true to the facts all the time. As a result, many climate scientists would argue (and have) that accurately expressing the uncertainties in their analysis or documenting counter-veiling evidence is wrong, because it dilutes the narrative.

I think this is the context in which Naomi Oreskes' recent NY Times article should be read. It is telling she uses the issue of secondhand tobacco smoke as an example, because that is one of the best examples I can think of when we let the narrative and our preferred social policy (e.g. banning smoking) to trump the actual scientific evidence. The work used to justify second hand smoke bans is some of the worst science I can think of, and this is what she is holding up as the example she wants to emulate in climate. I have had arguments on second hand smoke where I point out the weakness and in some cases the absurdity of the evidence. When cornered, defenders of bans will say, "well, its something we should do anyway." That is post-modern science -- narrative over rigid adherence to facts.

If you want post-modern science in a nutshell, think of the term "fake but accurate". It is one of the most post-modern phrases I can imagine. It means that certain data, or an analysis, or experiment was somehow wrong or corrupted or failed typical standards of scientific rigor, but was none-the-less "accurate". How can that be? Because accuracy is not defined as logical conformance to observations. It has been redefined as "consistent with the narrative." She actually argues that our standard of evidence should be reduced for things we already "know". But know do we "know" it if we have not checked the evidence? Because for Oreskes, and probably for an unfortunately large portion of modern academia, we "know" things because they are part of the narrative constructed by these self-same academic elites.

There won't be any direct order found telling the IRS to go hassle Conservative groups. That's not the way it works. Obama's style is to "other" groups he does not like, to impugn their motives, and to cast them as pariahs beyond the bounds of civil society. Such and such group, he will say, opposes me not because they have reasonable differences of opinion but because they have nefarious motives. Once a group is labelled and accepted (at least by your political followers) as such, you don't have to order people to harass them. They just do it, because they see it as the right thing to do to harass evil people. When Joe Nocera writes this in support of Obama in no less a platform as the NY Times, orders are superfluous

You know what they say: Never negotiate with terrorists. It only encourages them.

These last few months, much of the country has watched in horror as the Tea Party Republicans have waged jihad on the American people. Their intransigent demands for deep spending cuts, coupled with their almost gleeful willingness to destroy one of America’s most invaluable assets, its full faith and credit, were incredibly irresponsible. But they didn’t care. Their goal, they believed, was worth blowing up the country for, if that’s what it took...

He concludes by saying

For now, the Tea Party Republicans can put aside their suicide vests. But rest assured: They’ll have them on again soon enough. After all, they’ve gotten so much encouragement.

There are probably some deeply confused people in the IRS right now -- after all they were denying tax exempt status to terrorists, to enemies of America. They should be treated like heroes, and now they are getting all this criticism. So unfair.

But Obama, in his most candid moments, acknowledged that race was still a problem. In May 2010, he told guests at a private White House dinner that race was probably a key component in the rising opposition to his presidency from conservatives, especially right-wing activists in the anti-incumbent "Tea Party" movement that was then surging across the country.

This is totally the Obama way of fighting a political battle. He is saying, "forget their stated reasons for opposing me, such as opposition to the health care law, to Wall Street bailouts, and to rising government debt. They really oppose me because they are racists and I am black." Obama's opposition are absolutely never, ever people of good will who simply disagree.

PS#2: It's pretty hilarious the NY Times published Nocera's "Tea Partiers are Terrorists" editorial just 6 months after they editorialized against incivility in the context of the Giffords shooting, which by the way had as much to do with civility in public discourse as the Benghazi attacks had to do with a YouTube video. In fact, it sure seems like this administration has a history of falsely blaming tragedies on their political opposition's speech.

Over the course of 11 years, beginning in the mid-1930s, White acted as a Soviet mole, giving the Soviets secret information and advice on how to negotiate with the Roosevelt administration and advocating for them during internal policy debates. White was arguably more important to Soviet intelligence than Alger Hiss, the U.S. State Department official who was the most famous spy of the early Cold War.

The truth about White's actions has been clear for at least 15 years now, yet historians remain deeply divided over his intentions and his legacy, puzzled by the chasm between White's public views on political economy, which were mainstream progressive and Keynesian, and his clandestine behavior on behalf of the Soviets. Until recently, the White case has resembled a murder mystery with witnesses and a weapon but no clear motive.

Only in academia could folks see a "chasm" between admiration for the Soviets and an American progressive who grew up a supporter of Robert La Follette and later of the New Deal. The problem, I think, is that White seems to have shared the gauzy positive view of Soviet economic progress and success that was also rooted deeply in American academia (not to mention the NY Times). I don't know what the academic situation is like today, but as recently as 1983, for example, I had a professor at Princeton who went nuts at the mere mention of Hannah Arendt's name, apparently for the crime of lumping Stalin's communism in with Hitler's fascism as two sides of the same totalitarian coin.

Anthony Watt has a nice catalog of past predictions of doom (e.g. running out of oil, food, climate issues, etc). It really would be funny if not such a serious and structural issue with the media. I would love to see someone like the NY Times have a sort of equivalent of their reader advocate whose job was to go through past predictions published in the paper and see how they matched up to reality. If I had more time, it is the blog I would like to start.

Update: One of his readers Dennis Wingo took the resource depletion table from Ehrlich's Limits to Growth and annotated it -- the numbers in red show the resources Ehrlich predicted we should already run out of.

However, rather than ever, ever going back and visiting these forecasting failures and trying to understand the structural problem with them, the media still runs back to Ehrlich as an "expert".

It provides some insight as to why the NBA game seems to be all threes or points in the paint -- the mid-range jump shot just does not have the same return on investment (ie points per shot). Which begs the question, I suppose, as to why anyone shoots the mid-range jump shot at all (look at Battier's and Hardin's maps - they are almost all threes and layups/dunks). I suppose the answer likely takes the form of "you have to shoot mid-range to open up the other two zones", a sort of run to set up the pass in football strategy. Don't know enough about basketball to say if this is true.

Update: Also, the shot clock probably has a lot to do with it. Given infinite time, teams would be able to get the shot they want, but in 24 seconds sometimes you just have to loft one up as time runs out from wherever you are.

I worked for a manufacturer of industrial equipment for years. In most countries in Europe and North America, part of our strategy was a dedicated in-house sales force that could provide a high level of technical support. But we went away from that strategy when we went into third world countries, just the place where we needed more rather than less technical support for our customers.

Why? A big reason was the FCPA. There are many countries where it is simply impossible to do business without paying bribes. Bribes are absolutely wired into the regulatory process. In Nigeria, public officials are paid less with the expectation they will make it up on bribes, similar to the way we pay waiters who get tips. The only way to legally work in these countries is to work through third party resellers and distributors and other such partners, and then tightly close your eyes to how they get things done.

What always ticks me off about these cases is the fake attitude of naivite in the press that seems to be constantly amazed that corporations might have to pay bribes to do basic things we take for granted here, like get the water turned on or have your goods put on a ship. But in fact reporters can't be this naive, as they almost certainly have to deal with many of the same things in their business. I would love to see an accounting of the grease payments the NY Times pays in a year in foreign countries.

I think most people when they hear these foreign bribery cases assume corporations were paying to get a special advantage or to escape some sort of fundamental regulation. And this is possibly the case with Wal-Mart, but more likely they were simply paying because that is what you have to do just to function at all.

If Medicare is really an insurance program, than as I wrote last week, the premiums are absurdly low. And this isn't even a rich-poor transfer issue - the premiums are too low for everyone. See the bar chart about halfway down on this page at the NY Times. Here is a screenshot:

Take Social Security first. Taxes come fairly close to covering benefits, with some rich-poor redistribution. These numbers look sensible (leaving aside implied annual returns on investment and whether the government should be running a forced retirement program at all) -- the main reason social security is bankrupts is that in the years when premiums exceeded benefits, Congress raided and spent the funds on unrelated things.

Medicare, though, is a huge problem. Even for high income folks, premiums cover only 43% of the expected benefits (I am not sure how they treat present values and such, but again lets leave that aside, I don't think it affects the underlying point). Assuming we end up with some rich-poor transfer, it looks to me that premiums are low by a factor of three.

Everyone seems to think Medicare is a great deal. Of course it feels that way -- premiums are only covering a third of the costs. There is no way we can have intelligent debate on these programs when the price signals are corrupted. Its time to triple Medicare premiums.

One of the classic mistakes in graphics is the height / volume fail. This is how it works: the length of an object is used to portray some sort of relative metric. But in the quest to make the graphic prettier, the object is turned into a 2D, or worse, 3D object. This means that for a linear dimension where one object is 2x as long as another, its area is actually 4x the other and its volume is 8x. The eye tends to notice the area or volume, so that the difference is exaggerated.

The Tebow character is, by the data, supposed to be about 1.7x the Brady character. And this may be true of the heights, but visually it looks something like 4x larger because the eye is processing something in between area and volume, distorting one's impression of the data. The problem is made worse by the fact that the characters are arrayed over a 3D plane. Is there perspective at work? Is Rodgers smaller than Peyton Manning because his figure is at the back, or because of the data? The Vick figure, by the data, should be smaller than the Rodgers figure but due to tricks of perspective, it looks larger to me.

This and much more is explained in this Edward Tufte book, the Visual Display of Quantitative Information. You will find this book on a surprising number of geek shelves (next to a tattered copy of Goedel-Escher-Bach) but it is virtually unknown in the general populace. Every USA Today graphics maker should be forced to read it.

OK, so the Eastern narrative on Arizona is that it is full of a bunch of wacked-out xenophobic conservatives. And sure, we have our share. But the NY Times delves into an issue that, living here, I had never even heard of

The massive dust storms that swept through central Arizona this month have stirred up not just clouds of sand but a debate over what to call them.

The blinding waves of brown particles, the most recent of which hit Phoenix on Monday, are caused by thunderstorms that emit gusts of wind, roiling the desert landscape. Use of the term “haboob,” which is what such storms have long been called in the Middle East, has rubbed some Arizona residents the wrong way.

“I am insulted that local TV news crews are now calling this kind of storm a haboob,” Don Yonts, a resident of Gilbert, Ariz., wrote to The Arizona Republic after a particularly fierce, mile-high dust storm swept through the state on July 5. “How do they think our soldiers feel coming back to Arizona and hearing some Middle Eastern term?”

Presumably Yonts also uses some numeric system other than arabic numerals for his math as well. Seriously, I could mine any community and find some wacko with some crazy idea. Good journalists are supposed to have some kind of filter on these things to determine if they really are some pressing regional issue. I live here and I have not heard one word about any such controversy. But it fits the NY Times caricature of AZ, so they ran with it.

In fact, I think "haboob" has caught on pretty fast because it is a fun sounding name and it is something that is unique to AZ vs. other states. After living on the Gulf Coast and in tornado alley and on the west coast, it is kind of nice to live in a place where the worst natural disaster you get is a dust tsunami that makes you have to go out and wash your car.

Last week I showed the Obama-proposed cuts as an almost invisible, except under extreme magnification, portion of the total budget. Unfortunately, proposed Republican cuts (which according to the NY Times and other voices of big government will lead to the end of the world as we know it) are not much better

The Obama administration's investigation intoToyota safety problems found no electronic flaws to account for reports of sudden, unintentional acceleration and other safety problems. Government investigators said Tuesday the only known cause of the problems are mechanical defects that were fixed in previous recalls.

The Transportation Department, assisted by engineers withNASA, said its 10-month study of Toyota vehicles concluded there was no electronic cause of unintended high-speed acceleration in Toyotas. The study, which was launched at the request of Congress, responded to consumer complaints that flawed electronics could be the culprit behind Toyota's spate of recalls.

Officials with the National Highway Traffic Safety Administration said they reviewed consumer complaints and warranty data in detail and found that many of the complaints involved cases in which the vehicle accelerated after it was stationary or at very low speeds.

NHTSA Deputy Administrator Ron Medford said that in many cases when a driver complained that the brakes were ineffective, the most likely cause was "pedal misapplication," in which the driver stepped on the accelerator instead of the brakes.

I had more back in July (and here, where I observe that scientific data on breast implant safety did nothing to stop the torts, and is unlikely to do so in this case). I questioned the US Government's conflict of interest in this matter way back in January of 2010.

By the way, anyone want to reopen the case on that guy in LA with the runaway Prius -- I thought it was concocted at the time (I called him balloon boy in a Prius) and am doubly sure now. How is what he did, in retrospect, and different from leading the police on a high-speed chase?

This chart in the NY Times is pretty interesting, though I could quibble about the color coding. You have to stare at it a minute to get it - each cell represents a combination of stock purchase and sales dates, with the color representing the average market inflation-adjusted return for that buy and hold period (click to enlarge, or click through to the source link where it is explained in more depth).

Whenever one uses red and green for coloring a chart, the reader is going to assume red is bad and green is good. In this case, the light red represents returns from 0 to 3% above inflation. Is that bad? Maybe. I would say inflation plus 3% is probably lower than people's expectation of stock market returns, but I think a lot of folks would equate red with capital erosion, which is not the case if returns are out-pacing inflation.

This is sort of a good-news-bad-news story. The good news is that there is no 25-year period where returns fall below inflation. The bad news is that the median return of inflation plus 4% is probably less than most folks are planning for -- including a lot of state pension funds that are still counting on returns like 8% for their entire portfolio (something like inflation + 5-6%), which is a blend of stocks and bonds, implying they are hoping for an equity return north of that.

I hate blog posts that begin this way, but I will do it anyway: Imagine that Wal-mart, Target and a hundred other major retailers all got together and agreed to an industry plan to hold down workers's wages. Anyone involved with even rudimentary economics training would know that there would be enormous incentives for individual retailers to "cheat", ie offer wages above the agreed to levels to try to get a particular advantage hiring the best employees. So imagine that the cartel actually forms an enforcement body, that goes around the country levying fines and punishments against any individual participant who breaks ranks and tries to share some of the largess with their workers.

Now imagine the NY Times rooting the enforcement body on, cheering it when it adopts a new get-tough stance on organizations that pay its workers too much. Hard to imagine, but that is exactly the case in this article, where the Times writes about the NCAA's new efforts to get tough on what it calls "recruiting violations" but in any other industry would be called "trying to pay the workers more than the cartel allows."

NCAA division I sports are made up of a 100+ mostly public institutions that make a fortune off of their athletic programs, particularly men's football and basketball. Large institutions like the University of Texas or Ohio State reap tens of millions each year in ticket sales, TV deals, merchandising sales, and Bowl/tournament winnings. One of the reasons this is so profitable is that they basically pay the key workers who generate this income close to zero. Sure, they give them a scholarship, but what is the marginal cost to, say, the University of Texas for providing a few hundred free educations on top of their 40,000 paid customers? This is roughly equivalent to McDonald's paying its employees nothing more than a couple of happy meals each day.

While many of these university's athletes will make nothing after college playing sports, the ones involved in these "violations" are typically athletes who are offered millions, even tens of millions of dollars the moment they leave college. In effect, these colleges are getting tens of millions of dollars of labor virtually for free, and so the incentives to cheat on their cartel deal are huge, which is why the cartel enforcers have to be so aggressive in stopping under-the-table payments to the grossly underpaid workers.

It is an ugly process, and one wonders why so many folks support it when they would be appalled at such practices in any other industry.

Senior officials at the U.S. Department of Transportation have at least temporarily blocked the release of findings by auto-safety regulators that could favor Toyota Motor Corp. in some crashes related to unintended acceleration, according to a recently retired agency official.George Person, who retired July 3 after 27 years at the National Highway Traffic Safety Administration, said in an interview that the decision to not go public with the data for now was made over the objections of some officials at NHTSA.

"The information was compiled. The report was finished and submitted," Mr. Person said. "When I asked why it hadn't been published, I was told that the secretary's office didn't want to release it," he added, referring to Transportation Secretary Ray LaHood.

Welcome to the corporate state, Obama-style. Not to mention some old-fashioned bureaucratic CYA:

Since March, the agency has examined 40 Toyota vehicles where unintended acceleration was cited as the cause of an accident, Mr. Person said. NHTSA determined 23 of the vehicles had accelerated suddenly, Mr. Person said.

In all 23, he added, the vehicles' electronic data recorders or black boxes showed the car's throttle was wide open and the brake was not depressed at the moment of impact, suggesting the drivers mistakenly stepped on the gas pedal instead of the brake, Mr. Person said.

"The agency has for too long ignored what I believe is the root cause of these unintended acceleration cases," he said. "It's driver error. It's pedal misapplication and that's what this data shows."

Mr. Person said he believes Transportation Department officials are "sitting on" this data because it could revive criticism that NHTSA is too close to the auto maker and has not looked hard enough for electrical flaws in Toyota vehicles.

"It has become very political. There is a lot of anger towards Toyota," Mr. Person said. Transportation officials "are hoping against hope that they find something that points back to a flaw in Toyota vehicles."

The recall of millions of Toyota cars and trucks because of persistent problems of uncontrolled acceleration has exposed unacceptable weaknesses in the regulatory system. These weaknesses are allowing potentially fatal flaws to remain undetected. Democrats in Congress are pushing legislation to improve regulation and oversight of auto safety. It should be passed into law without delay.

As Olson points out, the NY Times has bent over backwards to ignore recent NHTSA findings in its reporting. This in particular is the enormously flawed logic of the regulator:

N.H.T.S.A. could fine Toyota only $16.4 million for delays in revealing problems with defective accelerator pedals that left the throttle open after being released. That's pocket change for a company of its size.

Pay no attention to that free market behind the curtain. The billions of dollars this acceleration problem has cost Toyota in recalls, repairs, lost sales, and damage to reputation are irrelevant -- only fines imposed by the Administration (and torts by its allies in the litigation industry) matter. And if the same problem beset government-owned GM, anyone want to bet what the penalty would be? They would probably get a new bailout from Obama to pay for the recall costs. In fact, even without the NHTSA findings, this Toyota problem is really no worse in terms of incidence rates or costs than any number of other recalls by US manufacturers. The only difference is the media attention lavished on the problem.

From the NY Times, I am having a hard time reconciling these statements from the same article:

First statement:

The law provides a partial exemption for certain health plans in existence on March 23, when Mr. Obama signed the legislation. Under this provision, known as a grandfather clause, plans can lose the exemption if they make significant changes in deductibles, co-payments or benefits.

About half of employer-sponsored health plans will see such changes by the end of 2013, the administration says in an economic analysis of the rules.

Second statement:

About 133 million Americans are in group health plans from employers with 100 or more employees, the administration said, and most "will not see major changes to their coverage as a result of this regulation."

My translation: Yes, you will lose your current health plan despite Obama's promises, but he doesn't want you to realize this until 2013, conveniently just after the next presidential election.

Over five years ago, I wrote this article about retirees in RV's who have become the new American nomads. Many of these folks work for my company each season, getting wages and a camping site in exchange for taking care of campgrounds. This is often called work camping.

A reader sent me this video from the NY Times discussing the same phenomenon (here is the print article). The only difference is these folks work for the government, which means that unlike at private companies, they don't get paid. I find it kind of fascinating that the NY Times thinks it's a wonderful innovation that "cash-strapped state governments" help balance the budget on the backs of free labor from older people. Can you imagine what the headlines would be if all the facts were changed, but the entity was a manufacturing company rather than a state park? It would have been torches and pitchforks (it is illegal except in narrow cases for private companies to accept free labor -- the government of course exempts itself from this requirement, as it does from much of labor law).

I actually think my article was better. The way work campers tend to disperse over the summer and then congregate over the winter in a couple of gathering spots (Colorado River in AZ, South Texas, Florida) reminds me a lot of the plains Indian tribes. And the challenges of a nomadic lifestyle when the world wants you to have a permanent address are interesting, and there are whole business models being crafted to solve these problems.

Anyway, our company hires nearly 500 of these folks every year, and are huge supporters of this lifestyle (and we pay!) If you are interested, check out our websites above and sign up for our job newsletter.

The truth is that given the state of American politics, the way the Senate works is no longer consistent with a functioning government. Senators themselves should recognize this fact and push through changes in those rules, including eliminating or at least limiting the filibuster. This is something they could and should do, by majority vote, on the first day of the next Senate session.

Don't hold your breath. As it is, Democrats don't even seem able to score political points by highlighting their opponents' obstructionism.

It should be a simple message (and it should have been the central message in Massachusetts): a vote for a Republican, no matter what you think of him as a person, is a vote for paralysis.

Mr. Bush has reacted by railing against Democrats for obstruction -- as if Democrats are duty-bound to breathe life into his agenda and, even sillier, as if opposing a plan that the people do not want is an illegitimate tactic for an opposition party.

Kevin Drum writes a post that I would interpret as saying "I really can't dispute the Supreme Court speech decision on principles but I am going to anyway because I don't like the result. He ends by saying

In the end, I guess I think the court missed the obvious "” and right "” decision: recognizing that while nonprofit corporations created for the purpose of political advocacy can be fairly described as "organized groups of people" and treated as such, that doesn't require us to be willfully oblivious to the fact that big public companies are far more than that and can be treated differently. Exxon is not the Audubon Society and Google is not the NRA. There's no reason we have to pretend otherwise.

This is silly. Just because people are not organized primarily as an influence group does not mean that those folks, once they are pursuing their goals, don't find the need to try to have influence, or have somehow given up their right to try to have influence. And whose fault is this anyway if Exxon shareholders feel the need to influence the political process? If the Left hadn't targeted commerce with a never-ending proliferation of restrictions and wealth-confiscations, commercial enterprises probably would not see much reason to waste money on advocacy. I can tell you that the last possible thing I want to spend money on in my company is kissing some Senator's ass or buffing up the NY Times ad budget, and would spend money to do so only under a pretty existential threat.

But why is there some mythology that members of Audubon or the NRA somehow have more control of the organization's advocacy than Exxon's shareholders? Sure, when you join the NRA you probably have a good idea what their positions are going to be, but are you really any less able to predict Exxon's positions on most issues? As I wrote in his comment section:

When you say "Exxon is not the Audubon society," I am not sure how? I am a stockholder of the first and a member of and contributor to the second. I have bought products from both. I have written both (well, actually I wrote Mobil once but it is the same now as Exxon) about their issue advocacy, each time with equally small effect. It is as difficult as a stockholder of Exxon to even get a disclosure of their issue advocacy and lobbying efforts as it is for Audubon (though I am smart enough to take a pretty good guess at both). Neither allows me, as a shareholder/member/contributor to vote on their advocacy/lobbying, either in terms of amount spent or direction. Each carry substantial influence in particular government realms.

So I am confused how they are different, except perhaps that you are personally sympathetic to one and not the other.

Just to remind you the existential threat that causes corporations to want to speak out in public, I will take an example from Drum himself, when he said:

It means the health insurance industry is scared that we might actually do something in 2009 and they want to be seen as something other than completely obstructionist. That means only one thing: they've shown fear, and now it's time to bore in for the kill and gut them like trouts. Let's get to it.

So I guess Exxon is indeed different from the Audubon Society - no one is trying to gut the Audubon Society like trouts.

One aspect of the recent debate about the Supreme Court's Citizen's United decision that really irritates me is the notion, propounded by the NY Times among others, that corporations and the individuals assembled in them do not have free speech rights because corporations are "state-created entities."

This is wildly untrue, or alternatively, if you accept the logic, then nearly every aspect of our lives is state-created. Take your pick. Basically, the argument is that because the government has set the rules for corporate incorporation, and that these incorporations require state approval, that makes corporate entities "state-created." But corporations are nothing more than a structure by which people can assemble and aggregate their capital and share ownership of an enterprise that employs that capital. If government incorporation law did not exist, individuals still would have the incentive to assemble in some sort of entity.

I don't know of anything in the corporate structure that could not be duplicated with contract terms. People point to the liability limitation as some sort of government gift to the corporate world, but that could easily be written in to every contract of, say, a partnership (certain torts are an exception I would have to think about). Vendors might choose not to accept such contracts, preferring to be able to pierce the partnership to go after individual owners to settle debts, but that choice exists today. I have many, many vendor contracts in my corporation, and nearly all of my bank loans, that require the personal guarantee of all the owners, effectively waiving the liability limitation for those transactions.

My point, though, is that corporate forms have evolved as they are because that is what the sum of investors and business people were working towards on their own, and government merely enshrined these forms into law. In fact, this basic rules-setting of the contracts playing field is one of the few arguably useful things government has done. If we allow government rules-setting over certain activities to be the test of whether it can further restrict our Constitutional rights, then nearly every aspect of our lives would be subject to such restrictions.

At its heart, this is the classic "heads I win, tails you lose" argument of statists. They claim that individuals must petition the state to register their corporation and license their business, and then use the fact of these required registrations to argue that the business is a "state-created entity" and that individuals give up their ability to exercise their rights when assembled into these entities. By the same logic, the fact that every commercial transaction is subject to license and taxation by the state would make our every transaction a "government-created exchange." Think I am exaggerating? Just look at this from our Arizona state web site:

The Arizona transaction privilege tax is commonly referred to as a sales tax; however, the tax is on the privilege of doing business in Arizona and is not a true sales tax. Although the transaction privilege tax is usually passed on to the consumer, it is actually a tax on the vendor.

Rights, like the ability of free exchange between individuals, supposedly can't be revoked, but privileges can. Thus the name. For folks who treasure individual liberty, we have already lost the battle when we allow the state this kind of language.

Third, it's important to consider what is meant by "state-created entity." If the term refers only to institutions that literally would not exist absent state authorization, it does not accurately characterize many, perhaps most corporations. If the federal government passed a statute abolishing corporate status tomorrow, most actual corporations would still exist and still continue to engage in the same business or nonprofit activities. They just would do so under different and perhaps less efficient legal rules (maybe as LLCs, partnerships, or sole proprietorships). But they wouldn't all just collapse or go away. There would still be a demand for most of the products produced by corporations.

If "state-created entity" doesn't refer to the mere existence of organizations currently defined as corporations but to the particular bundle of legal rights currently attached to the corporate form, then it turns out that virtually all other organizations are state-created entities as well. Universities, schools, charities, churches, political parties, partnerships, sole proprietorships, and many other private organizations all have official definitions under state and federal law. And all have special government-created privileges and obligations that don't apply to other types of organizations.

Even individual citizens might be considered "state-created" entities under this logic. After all, the status of "citizen" is a government-created legal entitlement that carries various rights and privileges, many of which the government could alter by legislation, just as it can with those of corporations (e.g. "” the right to receive Social Security benefits, which the Supreme Court has ruled can be altered by legislation any time Congress wants). In that sense, "citizens" are no less "state-created" entities than corporations are.

By the way, in case I was not careful with my language, I offer the same proviso as does Somin:

I should clarify that in this post, as before, I'm not arguing that corporations themselves are "persons" with constitutional rights. Rather, I'm asserting that their owners and employees are such persons and that that status enables them to use corporations to exercise their constitutional rights. Similarly, partnerships, universities, schools, and sole proprietorships aren't people either. But people can use them to exercise their constitutional rights, and the government can't forbid it on the sole ground that they are using assets assets assigned to "state-created entities." This distinction was unfortunately obscured in the current post by my shorthand references to "corporations'" rights. I only used that terminology because it's cumbersome to always write something like "people exercising their constitutional rights through corporations."

It is not often that the NY Times will question the long-term consequences of any Democratic program ostensibly aimed at mitigating a short-term need. So I don't want to fail to highlight this:

The Obama administration's $75 billion program to protect homeowners from foreclosure has been widely pronounced a disappointment, and some economists and real estate experts now contend it has done more harm than good.

Since President Obama announced the program in February, it has lowered mortgage payments on a trial basis for hundreds of thousands of people but has largely failed to provide permanent relief. Critics increasingly argue that the program, Making Home Affordable, has raised false hopes among people who simply cannot afford their homes.As a result, desperate homeowners have sent payments to banks in often-futile efforts to keep their homes, which some see as wasting dollars they could have saved in preparation for moving to cheaper rental residences. Some borrowers have seen their credit tarnished while falsely assuming that loan modifications involved no negative reports to credit agencies.

Some experts argue the program has impeded economic recovery by delaying a wrenching yet cleansing process through which borrowers give up unaffordable homes and banks fully reckon with their disastrous bets on real estate, enabling money to flow more freely through the financial system.

"The choice we appear to be making is trying to modify our way out of this, which has the effect of lengthening the crisis," said Kevin Katari, managing member of Watershed Asset Management, a San Francisco-based hedge fund. "We have simply slowed the foreclosure pipeline, with people staying in houses they are ultimately not going to be able to afford anyway."